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If you agree to arbitrate with a particular arbitrator, but that arbitrator won’t serve, you go to court. That is the teaching of a recent case out of the Second Circuit, Moss v. First Premier Bank. In Deborah Moss’ online contract with her payday lender she agreed to arbitrate any dispute using NAF as the arbitrator. When Moss wanted to bring a claim against the payday lender’s banking partner, NAF could not serve as the arbitrator because NAF had entered into a consent degree with the Minnesota Attorney General prohibiting it from arbitrating consumer disputes. The bank wanted to require Moss to arbitrate before a different arbitrator, reasoning that the parties had agreed to arbitrate, so if the chosen arbitrator wasn’t available, they should pick another. “Not so fast” said the district court, and then the Second Circuit. Moss only agreed to arbitrate with NAF, not anyone else. If NAF is unavailable, she can sue. She can’t be forced to choose someone else. Although there is a general policy favoring arbitration, arbitration agreements are contracts and courts can’t rewrite contracts to change the parties’ agreement. The Second Circuit noted that other Circuits (the Seventh and Third) have reached contrary results.

If you really want to arbitrate regardless of the arbitrator, either don’t identify the arbitrator in the contract or, if you do, agree to choose another if your first choice is unavailable. If you’d rather go to court than pick another arbitrator, specify the arbitrator you want in your contract.